EUGENE M. ROSA AND LAURA I. ROSA, APPELLANTS,
v.
DEUTSCHE BANK NATIONAL TRUST CO., AS TRUSTEE FOR FREMONT HOME LOAN TRUST 2006-1, APPELLEE

Fla. 2d DCA | 2016-05-13
No. 2D14-5710
MORRIS and SALARIO, JJ., Concur.
191 So. 3d 987 Florida District Court of Appeal, Second District (2016) Positive Treatment
Cited by 7 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Deutsche Bank sued to foreclose on the Rosas' mortgage loan but failed to establish standing at the time of filing because it could not prove physical possession of the original note endorsed in blank. The court reversed the foreclosure judgment and remanded for dismissal, holding that a foreclosing plaintiff must possess the original endorsed note when the complaint is filed.


Holding

No. Deutsche Bank failed to prove standing because there was no testimony that it possessed the original note when the lawsuit was filed. The only evidence suggested Wells Fargo, not Deutsche Bank, was the last entity to possess the note before filing, and Deutsche Bank did not argue or prove it had constructive possession through Wells Fargo as its agent.


Headnotes

[1] A plaintiff seeking to foreclose on a mortgage loan must establish that it had standing to foreclose at the time it filed the complaint.

[2] To establish standing as the holder of a note endorsed in blank, a party must be in possession of the original note.

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Key Quotes

“It is well settled that a plaintiff seeking to foreclose on a mortgage loan must establish that it had standing to foreclose at the time it filed the complaint.”

Establishes the fundamental requirement that standing must exist when the foreclosure complaint is filed, not later.

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Facts & Procedural History

The Rosas defaulted on their loan in January 2009. Deutsche Bank, not the original lender, filed a foreclosure complaint in April 2009 and later produ…

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Opinion of the Court
CASANUEVA, Judge.

CASANUEVA, Judge.

Eugene and Laura Rosa challenge the final judgment of foreclosure entered in favor of Deutsche Bank following a bench trial. The Rosas argue that Deutsche Bank failed to establish that it had standing to file suit at the inception of the foreclosure action. We agree and reverse.

The Rosas defaulted on the loan in January 2009. Deutsche Bank, which was not the original lender, filed a two-count complaint for foreclosure and reestablishment of a lost note in April 2009. Deutsche Bank subsequently filed the original mortgage and note with an undated, blank endorsement, and it amended its complaint to drop the lost note count.1 At trial, Deutsche Bank called Mr. and Mrs. Rosa and a loan verification analyst for Wells Fargo, the servicer of the loan. The loan verification analyst testified that Wells Fargo became the servicer on July 1, 2006, at which time Wells Fargo obtained the loan information through its boarding process. He also testified that it was the business practice of Wells Fargo to obtain the original note on or about .the time it began servicing the loan.

It is well settled that a plaintiff seeking to foreclose on a mortgage loan must establish that it had standing to foreclose at the time it filed the complaint. May v. PHH Mortg. Corp., 150 So.3d 247, 248 (Fla. 2d DCA 2014); McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). A plaintiff alleging standing as a holder “must prove not only physical posséssion of the original note but also, if the plaintiff is not the named payee, possession of the original note endorsed in favor of the plaintiff or in blank (which makes it bearer paper).” Kiefert v. Nationstar Mortg., LLC, 153 So.3d 351, 353 (Fla. 1st DCA 2014); see also Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013) (“To establish standing as the holder of a note endorsed-in blank, a party must be in possession of the original note.”). Further, “[w]here the plaintiffs status as holder relies on a blank indorsement, the plaintiff must establish that it had possession of the original note, indorsed in blank, when the complaint was' filed.” Calvo v. U.S. Bank Nat’l Ass’n, 181 So.3d 562, 564 (Fla. 4th DCA 2015); see also Eagles Master Ass’n v. Bank of Am., N.A., — So.3d —, —, 40 Fla. L. Weekly D1510, D1510, 2015 WL 3915871 (Fla. 2d DCA June 26, 2015).

In this case, Deutsche Bank asserted standing as the holder of a note endorsed in blank. However, there was no testimony that Deutsche Bank was in physical possession of the original note at the time the lawsuit was filed. The witness from Wells Fargo was unable to provide any testimony as to Deutsche Bank’s acquisition of the note, stating, “I’m not sure what Deutsche Bank’s acquisition information is.” The only testimony as to possession of the note suggests that Wells Fargo, not Deutsche Bank, was the last entity to have possession of the note prior to the filing of the complaint.2 Accordingly, the *989record in this case does not establish that Deutsche Bank had standing to- foreclose at the time it filed its complaint.

Because Deutsche Bank failed to prove that it had standing to foreclose, we reverse and remand for the trial court to enter an order of involuntary dismissal. See May, 150 So.3d at 249.

Reversed and remanded with instructions.

MORRIS and SALARIO, JJ., Concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Johnson v. Deutsche Bank Tr. Co., 248 So. 3d 1205 (Fla. 2d DCA 2018)
  • Morroni v. Wilmington Sav. Fund Soc'y, FSB, 292 So. 3d 514 (Fla. 2d DCA 2020)
    …3d 308, 310 (Fla. 2d DCA 2013)). When a foreclosure plaintiff asserts standing to enforce a note based on a blank indorsement, it must prove its possession of the original note bearing a blank indorsement. See Rosa v. Deutsche Bank Nat'l Tr. Co., 191 So. 3d 987, 988 (Fla. 2d DCA 2016); Phan v. Deutsche Bank Nat'l Tr. Co., 198 So. 3d 744, 747 (Fla. 2d DCA 2016); see also § 673.2051(2) (stating that a negotiable instrument indorsed in blank may be "negotiated by transfer of possession alone until specially i…
  • Wells Fargo Del. Tr. Co. v. Petrov, 230 So. 3d 575 (Fla. 2d DCA 2017)
    …note to establish the note-holder-plaintiffs’ right to pursue foreclosure. See, e.g., Shaffer v. Deutsche Bank Nat’l Tr., 42 Fla. L. Weekly D889, D889, — So. 3d -, -, 2017 WL 1400592 (Fla. 2d DCA Apr. 19, 2017); Rosa v. Deutsche Bank Nat’l Tr. Co., 191 So. 3d 987, 988 (Fla. 2d DCA 2016); Michel v. Bank of N.Y. Mellon, 191 So. 3d 981, 982 (Fla. 2d DCA 2016); Bolous v. U.S. Bank Nat’l Ass’n, 210 So. 3d 691, 692 (Fla. 4th DCA 2016); Deutsche Bank Nat’l Tr. Co. v. Marciano, 190 So. 3d 166, 167 (Fla. 5th DCA 2016…

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